The Pakistani Charter shoulders the State with the responsibility of protecting the institutions of family and marriage, with specific attention to the “mother and the child” in its Article 36. This notion becomes of the utmost importance when the essence is extended to vulnerable parties like children after the dissolution of a marriage.
Since this ignites the application of the law of custody of children, it is important to evaluate the legal, social and religious factors surrounding it in Pakistan.
Section 17 of the Guardians and Wards Act 1890 prescribes that the courts have the power to grant the guardianship of a minor child to the person who is the most appropriate candidate for ensuring the welfare of the child.
More importantly, the Act does not indicate any preference for either the mother or the father to be given such custody. Instead, it calls for taking factors like character, religion, education, financial status etc of the proposed guardian into consideration.
Resultantly, it gives the chosen guardian the power to keep the child in their custody and take all the essential decisions regarding his or her care.
Relying on Islamic jurisprudence, the rules of custody prescribe that a mother is entitled to custody during the tender ages of the children; this includes custody over a minor boy till he attains the age of seven while a minor girl may stay in her mother’s custody until puberty. The courts of law may, however, take the child’s preference into consideration after these.
With the exception to this general rule being whereby such a notion jeopardises the welfare of the minor in any way, remarriage cannot be stamped as a valid ground for refusing custody to the mother.
In the past, a mother’s remarriage was construed as a valid ground for refusing custody. This was reasoned on the stepfather not being within the permitted degree of consanguinity or patriarchal stigmas hailing that the mother would not be able to give her child the appropriate care since she would be occupied with the duties of the said marriage.
Preying on the sentiments of the masses, Islamic literature was used to consider that a mother forfeited her right to a child’s custody on remarriage.
Courts of law, however, evaluated this factor to consider that while this may not always be considered as an absolute rule, it nonetheless enabled a woman who remarries to lose her “preferential right” to custody which consequently led to forfeiture of the custody itself.
Presently, such beliefs are still integrated into the norms, cultures and traditions of the society, whereby divorced women are hesitant to opt for remarriage under the fear of losing their children.
Fortunately, the Supreme Court of Pakistan has acknowledged the dangers of the aforementioned discriminatory approach by officially condemning the use of remarriage as a ground for refusing custody to women. In Raja Muhammad Owais v. Mst. Nazia Jabeen, the apex court held that remarriage cannot be considered as a sole ground to disqualify a woman as a competent guardian.
Rather, it was important to consider what worked in the best interests of the child. For instance, remarriage of a mother would undoubtedly affect the child’s life, and so the onus was on the court to ensure that the evolved living arrangements and environment would not be detrimental to the child’s welfare.
Refusing to grant women the custody of her children if she chooses to remarry not only prevents her from enjoying her right to autonomy and equality, but it also issues a domino effect on the interests of the child. Therefore, it is crucial to remove gender biases and other associated taboos in ensuring that the Pakistani family law operates with equity.